The Secretary of State for the Home Department v Rozanne Banger

Where the application of EU free-movement law to an unmarried durable partner of a returning Union citizen is not acte clair, a national tribunal may refer the issue to the CJEU. The Surinder Singh principle may coexist with the Citizens Directive in a residual category where the Directive is not dispositive.

Article 3(2) of the Citizens Directive requires Member States to facilitate entry and residence for specified extended family members, to undertake an extensive examination of their personal circumstances, and to justify a refusal. The Tribunal identified possible disharmony between that obligation and domestic provisions which exclude the durable unmarried partner of a British citizen returning after exercising free movement rights.

Rozanne Banger, a South African national, lived with her British partner in the Netherlands while he worked there. She received a Dutch residence card as his extended family member. When the couple moved to the United Kingdom, the Secretary of State refused her application for a residence card because she was neither the spouse nor civil partner of a British citizen under regulation 9 of the Immigration (European Economic Area) Regulations 2006.

The First-tier Tribunal allowed her appeal to the limited extent of remitting the matter for a lawful decision. The Secretary of State appealed, contending that the Surinder Singh principle did not extend to an unmarried partner. The Upper Tribunal concluded that the relevant EU-law issues were not acte clair and referred four questions to the CJEU.

1. The proceedings were stayed and four questions were referred to the CJEU under Article 267 TFEU. The Tribunal did not finally determine whether the appellant was entitled to a residence card.

2. The Surinder Singh principle protects the effective exercise of a Union citizen’s free-movement rights. It may coexist with the Citizens Directive in a residual, probably small, category where the Directive does not dispose of the issue. The principle has sufficient flexibility to extend to analogous contexts, but the legal trigger for its application to an unmarried durable partner was unclear.

3. Regulation 9 of the Immigration (European Economic Area) Regulations 2006 did not cover the appellant because she was not a spouse or civil partner. Regulation 8 also did not treat a British citizen as an EEA national for the purpose of an unmarried durable partner. The Tribunal identified an arguable disharmony between that scheme and Article 3 of the Citizens Directive, including possible nationality discrimination.

4. Article 3(2) of the Citizens Directive imposes duties to facilitate entry and residence, conduct an extensive examination of personal circumstances, and justify refusal. A formulaic refusal based on an inflexible domestic rule might not discharge those duties. The refusal had also not considered the parties’ Article 7 Charter rights or proportionality.

5. The Tribunal further referred whether a domestic rule precluding an appeal by a person claiming to be an extended family member was compatible with the Directive, in light of Sala (EFM’s – right of appeal) [2016] UKUT 411 (IAC).

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal from the First-tier Tribunal was not finally determined. The Tribunal referred EU-law questions to the CJEU and stayed the proceedings.
• First-tier Tribunal: Allowed Ms Banger’s appeal to the limited extent that the application was remitted to the Secretary of State for a lawful decision.